Macy's Retail Holdings, Inc. – Macy's Maine Mall Subdivision – 290 Maine Mall Rd

AGENDA ITEM #6 Meeting of June 12, 2019

Planning Department Memorandum to Planning Board

Subject: Minor Subdivision Request –– Macy's Maine Mall Subdivision –– 290 Maine Mall Rd –– Macy's Retail Holdings, Inc.

INTRODUCTION Macy's Retail Holdings, Inc. is requesting a minor subdivision application approval to create a seven-lot subdivision located at 290 Maine Mall Road. The applicant proposes to create a seven-lot subdivision located at 290 Maine Mall Road. The applicant's proposal includes the creation of five separate parcels for the five existing structures onsite including Macy's store as the "parent tract" and the creation of two vacant lots for future improvements. The property further identified as Tax Assessor’s Map 74B, Lot 4, in the Commerical and Regional Center District (CCR).

A public hearing legal notice was published in the Portland Press Herald newspaper on June 5 and 7, 2019, and public hearing notices were mailed on June 4, 2019, to the 34 South Portland owners of property within 500 feet; to the applicant, Conservation Commission, and City Council.

This submission will be reviewed under Chapter 24, Subdivisions; and for compliance with Chapter 27, Article XV Commerical and Regional Center District (CCR).

SUBMISSION CHRONOLOGY Planning Board deemed as a Minor Subdivision: October 10, 2018

Minor subdivision application submitted: October 12, 2018

Application complete for Planning Board Review: June 5, 2019

PROJECT DATA FOR PROPOSED MINOR SUBDIVISION Zoning: Commerical and Regional Center District (CCR) Land Area: 827,857 SF (19.005 Acres) Existing Land Use: Shopping Plaza with four leased outbuildings Proposed Land Use: Seven Lot Subdivision with two vacant parcels Parking Provided: 1,359 Spaces

SUBDIVISION CLASSIFICATION The applicant had requested the Planning Board classify the proposed development as a Minor Subdivision at the October 10, 2018 meeting. Per Sec 24-3, a Major Subdivision is “any subdivision containing than four lots, or any subdivision requiring any new street extension, of the extension of municipal facilities; provide the Planning Board may reclassify a proposal as a minor subdivision if such reclassification will not be inconsistence with the purposes of the ordinance to protect the public interest; provided further that no proposed subdivision containing more than six parcels of land, six buildings, or ten dwellings may be eligible for such reclassification”. The applicant is not proposing to extend a public street or municipal facilities and is less than six lots or buildings.

MINOR SUBDIVISION REVIEW 1. Zoning This submission is for permitted use and meets the space and bulk requirements of the Commerical and Regional Center District (CCR). Front, side, and rear yard setbacks are shown

Minor Subdivision Request 290 Maine Mall Rd Macy's Retail Holdings, Inc page 1

on the subdivision plat. The applicant is showing a side yard setback to be less than 20-feet, per Section 27-774 minimum side yard §(b) (see Attachment #2 Applicant's Response).

2. Lots In accordance with Secs. 24-4(i), 24-38(A), and 27-1426(q), the proposed subdivision is in conformity with the Subdivision Ordinance and/or the City’s Comprehensive Plan.

The applicant is proposing to create a mix-used subdivision with common access ways, travel isles, parking facilities, stormwater infrastructure, and all associated maintenance. Pursuant to Sec. 27-1426(i), the proposed redevelopment project does meet all the design and general construction requirements as established Chapter 24 Subdivisions.

3. Access, Roads, Traffic Pursuant to Section 27-1426 (g), the applicant is not proposing any new building construction or additions with the minor subdivision approval. The applicant states that the development of the two vacant parcels will subject to the City of South Portland Site Plan review by the Planning Board prior to development (see Conditions of Approval #3). The existing building and site will not be altered with the approval of the subdivision and future development will need to provide a traffic report to address the standards in Planning Board regulation number 7.

Access to the out parcel will be from existing driveway access ways from the Maine Mall Road and Gorham Road, but in general Maine Mall complex has existing shared parking and travel easement extended to the Sear and the Macy’s parcel.

Pursuant to Section 27-1426 (l), the applicant proposal does not include any change to the existing 1,359 parking spaces.

4. Utilities The applicant is no proposing any changes to the existing utilities serving the site and the properties.

5. Soils, Drainage, Erosion Control, Flood Prevention Existing Conditions The existing site drains to Long Creek, which is an impaired stream. The property is subject to the Participating Landowners Agreement (PLA) with the Long Creek Watershed Management District (LCWMD). When the parcels are sold by Macy’s, the new owner will be required to become a PLA and enter into a Stormwater Management Agreement at the time of a Site Plan approval by the City of South Portland Planning Board.

6. Natural Areas, Open Space, Landscaping, Lighting Is not proposing any change to the site.

7. Potential Nuisances and Noise Impacts No potential nuisances are anticipated per Section 27-1426(j).

The project is not anticipated to generate noise impacts above those permitted by Chapter 30, Control of Noise from New Development.

8. Legal The applicant is Macy’s Retail Holdings, Inc. The record owner of the property at 290 Maine Mall Road is Asgrec Two, Inc. by virtue of a deed dated November 29, 2004, and recorded in the Cumberland County Registry of Deeds in Book 22242, Page 30. By a series of mergers and

Minor Subdivision Request 290 Maine Mall Rd Macy's Retail Holdings, Inc page 2

name changes, Macy’s Retail Holdings, Inc. is now the legal owner of the property, per Section 27-1426 (r).

The applicant has submitted documentation from the Maine Secretary of State’s Office dated October 15, 2018, demonstrating that it is a legally existing New York business corporation authorized to do business in Maine, per Section 27-1426 (s).

No new construction is planned; this is a lot of division only, per Section 27-1426 (t).

9. Miscellaneous The applicant is requesting the waiver of Section 27-1536(d) due to the property owner is a PLA LCWMD, per Condition of Approval #5).

Prior to the release of the signed Mylar of the subdivision, the applicant shall provide to the Planning Director the executed Reciprocal Easement Agreement (REA).

Minor Subdivision Request 290 Maine Mall Rd Macy's Retail Holdings, Inc page 3

RECOMMENDATION Based on a review of information submitted by the applicant, staff recommends the following action by the Board:

WAIVERS: I move to approve the waiver request of Section 27-1536(H)(1), the modify the Basic Stormwater Management Plan to waive Sections 27-1536(d) for the Long Creek Watershed District's General Permit.

MINOR SUBDIVISION I move to approve the minor subdivision application, dated October 12, 2018, through; drawings dated October 12, 2018, through May 14, 2019, for Macy's Maine Mall Subdivision located at 290 Maine Mall Rd, with the following conditions:

Conditions: 1. Prior to the release of the recoding mylar and pre-construction meeting with the City, the applicant shall pay all outstanding review escrow account fees and post the necessary performance guarantee(s) in such amount(s) as established by the City for the installation of the required granite monuments, executed REA for the existing buildings and property owners. 2. Planning Board Regulation #5, standard condition of approval: This approval is dependent upon and limited to the proposals and plans contained in the application and supporting documents submitted and affirmed to by the applicant. No project, plan or development previously approved by the Planning Board may be altered or modified without securing prior approval of the Planning Board in the form of an amended approval; provided, however, that, if at any time it becomes necessary or desirable to make modifications to the project, plan or development, the Planning Director may approve modifications determined by the Planning Director to be de minimis in that they (i) do not amount to a waiver or substantial alteration of any condition or requirement set by the Planning Board; (ii) do not affect any approval standard; (iii) meet all applicable ordinances and laws; (iv) are reviewed and approved by all appropriate City staff and consultants; and (v) do not involve any change to lot lines. De minimis changes include only the modifications listed in Section 24-27 of the Subdivision Ordinance and Section 27-140 of the Zoning Ordinance. 3. Prior to the development and issuance for future building permits, the applicant shall be required the obtain a Site Plan approval for the Planning Board for Lots A and C. 4. No curb cuts of driveway access shall be created for Lots A through G. 5. All Lot shall be required to join the Long Creek Watershed Management District's General Permit and enter into a Drainage Maintenance Agreement. 6. All lots that don't meet the 20' side yard set back will be required to enter into a Reciprocal Maintenance agreement the members of the subdivision.

______Community Planner June 12, 2019

Attachments: 1. Staffs comments. 2. Applicant’s response letters

Minor Subdivision Request 290 Maine Mall Rd Macy's Retail Holdings, Inc page 4

May 13, 2019

Mr. Doug Reyonlds, P.E. Gorrill Palmer 707 Sables Oaks Dr, Suite 30 South Portland, ME 04106

RE: Updated Staff Comments – Site Plan Review Request – Macy's Retail Holdings, Inc. – Macy's Maine Mall Subdivision – 290 Maine Mall Rd

Dear Mr. Reynolds:

Following are all of the staff comments that have been received to date on your request for the Site Plan Review Request application review.

Water Resource Protection WRP has no comments on the proposed subdivision plan, beyond the caveat that future development of the subdivided parcels will need to comply with our stormwater regulations.

Regards,

Justin Gove, P.E. Civil Engineer Water Resource Protection

I met recenlty with the Long Creek Watershed Management District’s Ex. Director Pete Carney and LCWMD attorney Jim Katsiaficas to strategize about the upcoming General Permit renewal (expires in June 2020). Key considerations will be to determine why water quality and aquatic habitat haven’t improved much despite investing over $10M for the past decade. While chlorides are the most likely culprit, another explanation is that providing treatment for 150 acres of ~600+ acres of the impervious area throughout the watershed simply wasn’t enough. This begs the question of which provisions should be included in the next 5 year GP.

Since how and where stuff gets built really matters from a water quality perspective, there’s a pretty good chance we’ll suggest developing some kind of watershed overlay district to tighten requirements for increased SW treatment/retention. (Recall that the GP currently allows for less stringent requirements than Ch. 500). This would have implications for the Macy’s subdivision and all future development in the LC w’shed – which still has considerable buildout potential (e.g., Sable Oaks and portions of Scarborough).

These discussions are very preliminary but I wanted to let you know what we’re thinking and will definitely loop you all in as the GP renewal process progresses.

Fred Dillon

Mr. Reynolds Page 2 Corporation Counsel Right/title or interest: The applicant is Macy’s Retail Holdings, Inc. The record owner of the property at 290 Maine Mall Road is Asgrec Two, Inc. by virtue of a deed dated November 29, 2004, and recorded in the Cumberland County Registry of Deeds in Book 22242, Page 30. By a series of mergers and name changes, Macy’s Retail Holdings, Inc. is now the legal owner of the property.

Corporate status: The applicant has submitted documentation from the Maine Secretary of State’s Office dated October 15, 2018, demonstrating that it is a legally existing New York business corporation authorized to do business in Maine.

Financial capacity: No new construction is planned; this is a lot division only.

Other: (1) Changes that need to be made to the proposed (i) Declaration of Reciprocal Easement Agreement, and (ii) Declaration of Outparcel Covenant, Conditions and Restrictions have been provided to the Planning Department in redlined format. The latter document includes changes requested by the Long Creek Watershed Management District’s counsel as well as the Corporation Counsel. (2) The Planning Board needs to carefully consider stormwater management implications for the property in the event that some or all of seven lot owners decide to seek individual permits for the discharge of post-construction stormwater rather than maintain permit coverage under the Long Creek General Permit. Is proposed Condition of Approval No. 5 sufficient? What happens when the LCWMD’s life span expires? What control does the City then have over stormwater management on the properties? (3) Proposed Condition of Approval No. 3 has a typo in it. (4) Proposed Condition of Approval No. 6 will need to be reworked once Comment (1) above is addressed. (5) The configuration of Lots A and B along Maine Mall Road creates oddly shaped lots.

Code Enforcement No comments at this time.

Engineering Peer Review No comments requested.

Assistant City Manager I have no concerns regarding the subdivision request. Additional development adjacent to the mall will be a good thing. However, when the lots are eventually developed we may need to take a closer look at parking.

Fire Department Macy's Retail Holdings, Inc. is requesting a minor subdivision application approval to create a seven-lot subdivision located at 290 Maine Mall Road. The applicant's proposal includes the creation of five separate parcels for the five existing structures onsite including Macy's store as the "parent tract." As part, if the creation of the minor subdivision, the applicant is proposing to creation vacant lots for future improvements in which the applicants would obtain a Site Plan from the Planning Board. Each development will be a requirement for relevant site plan criteria. One of the parcels will be a less than 20' side yard setback as found in Section 27-774 of space and bulk previsions.

The following code requirements shall be met where applicable: 1. NFPA 101 (2009) Life Safety Code 2. NFPA 1 (2009) Fire Code including Chapter 18 Fire Department Access and Water Supply 3. City of South Portland Ordinance, Chapter 8 Fire Protection, and Prevention 4. The BOCA National Fire Prevention Code 1996 5. The state of Maine adopted Life Safety Codes

Requirements, concerns, considerations or review:

Mr. Reynolds Page 3 1. Will new lots or future proposed structures have rights and access to the current private hydrants located throughout the Maine Mall? This could be a concern. 2. No other concerns at this time.

This list may not constitute all of the code requirements the applicant is responsible for, nor should this letter be considered a waiver of any minimal requirements of the code through omission, and where there is a conflict in code requirements, the stricter code shall apply. There may be other requirements as the project moves forward or if the occupancy category or building structure changes.

If there are any questions or other proposed change requests, please do not hesitate to contact me.

Michael Williams Deputy Fire Chief [email protected]

Planning Director No comments received at the time of the writing this letter.

Community Planner I do not see any information related to the minimum landscaped open space. Not sure if all of the proposed lots will meet the 20% requirement or if a written agreement will be required per Sec. 22-774 with all of the lots to collectively meet the requirement.

Justin Barker, AICP, LEED GA, CNU-A Community Planner

* Please correct the waiver to state: The waiver of Section 27-1536(h)(1) of the Zoning Ordinance to modify the Basic Storm Water Management Plan requirement is approved in order to allow the developer to participate in the Long Creek Watershed District’s General Permit per Section 27-1536(d) of the ordinance.

* Please correct the conditions of approval as follows:

1. Prior to the release of the recoding mylar and pre-construction meeting with the City, the applicant shall pay all outstanding review escrow account fees and post the necessary performance guarantee(s) in such amount(s) as established by the City for the installation of the required granite monuments, executed REA for the existing buildings and property owners. 2. Planning Board Regulation #5, standard condition of approval: This approval is dependent upon and limited to the proposals and plans contained in the application and supporting documents submitted and affirmed to by the applicant. No project, plan or development previously approved by the Planning Board may be altered or modified without securing prior approval of the Planning Board in the form of an amended approval; provided, however, that, if at any time it becomes necessary or desirable to make modifications to the project, plan or development, the Planning Director may approve modifications determined by the Planning Director to be de minimis in that they (i) do not amount to a waiver or substantial alteration of any condition or requirement set by the Planning Board; (ii) do not affect any approval standard; (iii) meet all applicable ordinances and laws; (iv) are reviewed and approved by all appropriate City staff and consultants; and (v) do not involve any change to lot lines. De minimis changes include only the modifications listed in Sec 24-27 of the Subdivision Ordinance and Sec. 27-140 of the Zoning Ordinance. 3. (Change to:) Prior to development and issuance of any building permits, the applicant shall be required to obtain Site Plan approval from the Planning Board for Lots A and C. 4. (Change to:) No new curb cuts shall be created for Lots A through G. 5. (Change to:) All Lots shall be required to join the Long Creek Watershed Management District's General Permit and enter into a Drainage Maintenance Agreement.

Mr. Reynolds Page 4 6. (Change to:) All Lots, including those that do not meet the 20' side yard setback, shall be required to be subject to the Declaration of Outparcel Covenant, Conditions and Restrictions and the Declaration of Reciprocal Easement Agreement, both of which shall be approved as to form by the Corporation Counsel.

Steve Puleo Community Planner

Director of Transportation No comments.

Your application is scheduled for review at the June 12, 2019, Planning Board meeting. Please respond to the staff comments in writing and provided all requested submittals (such as revised and updated plan sets, documentation, etc.) to the planning office one week prior (06/5/2019) to your scheduled hearing. The Planning Board requires nine (9) full-size plan set and mylar for signing and one original response letter and copy of supplemental documentation. If possible, please provide pdf files of the planset, response letter, and documentation. It is your responsibility to stay in touch with the Planning and Development office during this period. Your attendance will be required; the Planning Board meeting begins at 7:00 PM in the Council Chambers of the South Portland City Hall, located at 25 Cottage Road.

Please feel free to contact me at 767-7648 with any questions or concerns.

Sincerely,

Steve Puleo Community Planner

Encl: Redlined Declaration Outparcel Covenants, Conditions, and Restriction and Declaration Reciprocal Agreement

When Recorded, Return To: David Freytag, Esq. Declarant, Inc. 7 West Seventh Street Cincinnati, OH 45202

DECLARATION

RECIPROCAL EASEMENT AGREEMENT

This Declaration is made as of______, 2019 by Macy’s Retail Holding, Inc., a New York corporation (“Declarant”).

A. Declarant, is the owner of that certain parcel(s) of land that is in the State of Maine, Cumberland County, located at 290 Maine Mall Road in South Portland Maine as described on Exhibit A and as shown on Exhibit B [is this the subdivision plan or a yet to be proposed site plan?] as attached hereto. Declarant’s fee ownership parcel includes Lots A through G as shown on Exhibit B. Declarant desires to subdivide the property into seven (7) separate parcels.

B. After the subdivision is complete, Declarant, as owner of Lot G, is the owner of the fee interest in all parcels A through G, including the ownership of the fee interest in the access ways from Gorham Road that abut Lots D, E and F and the access way from Maine Mall Road that abuts Lot B.

C. Pursuant to Section 27-774 of the South Portland Code, after subdivision, Lots B, D, E and F will not meet the twenty- foot (20’) side setback requirement of Section 27-774 unless the owners of both lots (or all lots if the subject side yards involve more than two abutting lots) enter into a written recordable agreement binding upon such owners and their respective heirs, successors and assigns allowing a lesser common side setback.

D. Declarant, as owner of Lot G, and Declarant, as owner of Lot E, subject to subdivision and site plan approval, states that for so long as the existing building on Lot E remains standing in its present form, Declarant shall allow a lesser common side setback, equal to the existing side set back between Lot E and the access way from Gorham Road abutting Lot E, equal to the existing side set back between Lot E and the abutting access way.

E. Declarant, as owner of Lot G, and Declarant, as owner of Lot F, subject to subdivision and site plan approval, states that for so long as the existing building on Lot F remains standing in its present form, Declarant shall allow a lesser common side setback, equal to the existing side set back between Lot F and the access way from Gorham Road abutting Lot F, equal to the existing side set back between Lot F and the abutting access way.

F. Declarant, as owner of Lot G, and Declarant, as owner of Lot B, subject to subdivision and site plan approval, states that for so long as the existing building on Lot B remains standing in its present form, Declarant shall allow a lesser common side setback, equal to the existing side set back between Lot B and the access way from Maine Road abutting Lot B.

G. Declarant, as owner of Lot G, and Declarant, as owner of Lot D, subject to subdivision and site plan approval, states that for so long as the existing building on Lot D remains standing in its present form, Declarant shall allow a lesser common side setback, equal to the existing side set back between Lot D and the access way from Gorham Road abutting Lot D.

H. Declarant, prior to the sale, conveyance or transfer of a fee simple interest of any or all Lots A through F to another party or parties, shall prepare and record in the Cumberland County Registry of Deeds, an enforceable separate Declaration of Outparcel Restrictions Agreement (the “Outparcel Declaration”) between the new owner of any lot and Declarant, and binding upon their respective heirs, successors and assigns, which Outparcel Declaration shall grant reciprocal easements to each lot owner for the mutual construction, maintenance repair and access across eachits lot for any buildings, parking areas, or other improvements on an abutting lot which the owner of such lot reasonably requires for the use or support of the abutting lot(s) for such purposes, and the Outparcel Declaration shall require the new owner and Declarant to provide for appropriate fire safety construction standards [where is this in Outparcel Declaration??]. The grantee of said easement shall have the right of reasonable ingress and egress over and across adjoining land owned by grantor to and from the easement area as so designated under the Outparcel Declaration for the purposes permitted therein.

I. Any lot owner having shared or common parking with any other lot owner and/or any shared access with any other lot owner when such common parking or shared access is used to satisfy the standards of the South Portland Code of OrdinancesZoning Ordinance, subdivision approval or site plan approval, shall maintain its shared or common parking area and shared access area in accordance with any existing or future maintenance agreements between the lot owners or others, including any easement agreement between the lot owners in effect as of the date of this Declaration. Declarant, prior to the sale, conveyance or transfer of a fee simple interest of any or all Lots A through F to another party or

parties, shall prepare and record in the Cumberland County Registry of Deeds, an enforceable cross parking easement that will provide sufficient parking to all lots.

J. Declarant, as owner of the existing improved parcels of land identified as Lots A through G, shall, so long as such minimum landscaped open space is required, provide and maintain in Lot G, sufficient minimum landscaped open space so that the minimum landscaped open space for all Lots A through G, when taken together, shall comply with the South Portland Code of Ordinances local code. The Owner of Lot A, Lot B, Lot C, Lot D, and Lot E shall not reduce the minimum landscaped open space on its lot below the amount of landscaped open space as it currently exists as of the date of this Declaration.

K. This Declaration shall be binding upon Declarant and its respective heirs, successors and assigns.

K.L. Any amendment of this Declaration must be first approved in writing by the City of South Portland, acting by and through its Planning Board.

IN TESTIMONY WHEREOF, witness the signature of Declarant on the date first above written.

[Signature follows on subsequent pages]

MACY’S RETAIL HOLDINGS, INC., a New York corporation

By: ______Charles P. DiGiovanna Vice President

STATE OF OHIO ) ) COUNTY OF HAMILTON )

This instrument was acknowledged, subscribed and sworn to before me on the __ day of ______, 20198, by Charles P. DiGiovanna, Vice President of Macy’s Retail Holdings, Inc., a New York corporation, on behalf of said corporation.

______Notary Public My commission expires on______{Seal of Notary}

Doc# 1895461 Exhibit A

Legal description

Exhibit B Site/Subdivision Plan

DECLARATION OF OUTPARCEL COVENANTS, CONDITIONS AND RESTRICTIONS

THIS DECLARATION OF OUTPARCEL COVENANTS, CONDITIONS AND RESTRICTIONS ("Declaration") is made as of the ____ day of ______, 2019 by Macy’s Retail Holdings, Inc., a New York corporation (“Declarant”).

W I T N E S S E T H:

WHEREAS:

(A) Declarant is the owner of a certain ______square foot parcel of land (the “Outparcel”) situated in the County of Cumberland, State of Maine and more particularly described on Exhibit “A” attached hereto.

(B) The Outparcel is currently improved with a ______square foot restaurant building (the “Improvements”) being operated as ______under the trade name ______pursuant to that certain Lease between Declarant and ______(“______”) dated ______, 20__ (the “______Lease”).

(C) Declarant intends to sell the Outparcel and desires that the use and operation of the Outparcel shall continue to be compatible with the adjacent shopping center development commonly known as Maine Mall (the “Shopping Center”) after the Outparcel is sold, a portion of which is situated on land (the “Declarant’s Site”) owned by Declarant as more particularly described on Exhibit “B” attached hereto.

(D) The Outparcel and its Improvements are shown on the site plan ("Site Plan") attached hereto as Exhibit “C” [should this be the subdivision plan?] attached hereto.

(E) The Outparcel and the Declarant’s Site are subject to a certain Permanent Agreement dated February 23, 1968 by and between Declarant’s predecessor in interest, Alstores Realty Corporation, and William D. Lane, as amended and supplemented from time to time (together with all amendments and supplements, collectively, the “REA”) governing the operation of the Declarant’s Site and adjacent parcels of improved land collectively as the Shopping Center.

(F) The Outparcel and the Declarant’s Site are subject to a certain Agreement Between Participating Landowner and Long Creek Watershed Management District between Declarant and the Long Creek Watershed Management District dated May 17, 2010 (the “Watershed Management

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Agreement”), a Memorandum of which is recorded in the Cumberland County Registry of Deeds in Book 27868, Page 287, and that certain General Permit – Post Construction Discharge of Stormwater in the Long Creek Watershed, MEPDES Permit #MEG190000, dated November 6, 2009, and extended on April 21, 2015 (the “General Permit”), both of which address the discharge of stormwater at the Outparcel and Declarant’s Site.

NOW, THEREFORE, Declarant declares that the Outparcel shall be held, transferred, conveyed and occupied subject to the restrictions and covenants hereinafter set forth:

1. GENERAL RESTRICTIONS.

(a) REA. The Outparcel shall be subject to the REA and all benefits and burdens that accrue therefrom for so long as the REA remains in full force and effect. Notwithstanding the foregoing, no owner, tenant or occupant of the Outparcel shall be deemed a party to the REA and no approval rights accruing to the Declarant solely as a party to the REA shall transfer to any owner, tenant or occupant of the Outparcel.

(b) Construction of Improvements. The Outparcel is currently improved with the Improvements and surrounding parking areas as shown on the Site Plan. If the Outparcel owner (the “Outparcel Owner”) desires to make any changes to the Improvements, then any such changes shall be in accordance with a detailed plan of the proposed development on the Outparcel, which plan shall be subject to Declarant’s prior written approval, which shall not be unreasonably withheld or delayed. There shall be no construction work which involves any use of the road which provides vehicular circulation around the Shopping Center (“Ring Road”) or any road which provides access between adjacent roads and the Ring Road or any other roadways within the Shopping Center or which otherwise affects land outside the Outparcel during the period from November 1 to the following January 2, during any three-day holiday weekend, or during the thirty (30) days prior to Easter Sunday.

(c) Permissible Building Areas. All buildings on the Outparcel shall be located within the building footprint of the Improvements as shown on the Site Plan and shall comply with the “maximum building coverage” requirements of the South Portland Code of Ordinances.

(d) Building Height. To protect the visibility of the Shopping Center, no building on the Outparcel shall exceed the height of the Improvements (exclusive of rooftop mechanical equipment) as shown on the Site Plan.

(e) Building Architecture. The exterior color, materials and elevations of any building on the Outparcel shall be architecturally harmonious

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with the Shopping Center. Decorative screening and/or landscaping shall be maintained so as to obscure from public view all trash rooms, trash receptacles, loading or service areas, mechanical or electrical equipment, storage facilities or bins, or other unsightly building appurtenances. Appropriate screening shall be provided to obscure all roof mounted equipment and appurtenances, roof vents and the like from public view.

(f) Traffic Flow. Pavement markings, directional signs and other traffic indicators upon the Outparcel shall be in accordance with applicable law, and shall provide for a traffic scheme compatible with that of the Shopping Center.

(g) Site Lighting. Light sources shall conform to the light sources servicing those areas of the Shopping Center which are open for use to the public. Fixtures shall be a maximum of twenty-five (25) feet in height at entrances from the Ring Road and a maximum of fifteen (15) feet in height on the interior of the Outparcel. Site lighting specifications shall conform to the site lighting specifications utilized for the Declarant’s Site. The prior written approval of Declarant is required with respect to candle-foot level, lamp type and bulb color utilized in connection with all site lighting.

(h) Quality. The quality of buildings, paving, lighting and other improvements constructed on the Outparcel shall be at least equal to the quality of such improvements on the Declarant’s Site.

(i) Use. The Outparcel shall not be used for any purpose other than restaurant, retail, office, medical office or hotel uses. No portion of the Outparcel shall be used for any of the following uses or for uses with the following characteristics: flea-market, head shop, sale of new or used motor vehicles, auto service center, auto body or fender shop, car wash, off-track betting parlor, pornographic shop or pornographic book store, nude or topless dancing operation, massage parlor, any use which involves noise or sound that is reasonably objectionable due to intermittence, beat, frequency, shrillness or loudness, any use which may cause objectionable odors and/or untidiness such as, but not limited to, stand-up or drive-in food facilities or other litter-creating operations (provided, however, that a sit-down or drive-through type restaurant is not precluded hereby), any use which involves noxious, toxic, caustic or corrosive fuel or gas, any use which involves any unusual firing, explosives or other damaging or dangerous hazard (including the storage, display or sale of explosives or fireworks, any indoor gun range or gun club), any assembling, manufacturing, distilling, refining, smelting, agriculture or mining operation, industrial or warehouse purposes, any trailer court, mobile home park, labor camp, junk yard, stock yard or animal raising or boarding (other than pet shops and veterinarian clinics or hospitals, provided such facilities otherwise comply with the provisions hereof), any dumping, disposal, incineration or reduction of garbage or refuse (other than handling or reducing such waste produced on the

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premises from otherwise authorized uses and only if handled in a reasonably clean and sanitary manner), any commercial laundry or dry cleaning plant (other than shops serving as drop-off and pick-up cleaning establishment with minimal cleaning and/or pressing done on-site), bowling alley, mortuary or similar service, any public or private nuisance, any use not compatible with the operation of a first-class regional enclosed mall shopping center, or any illegal use. No selling activity shall be permitted outside of the buildings on the Outparcel.

(j) Parking. Parking for the Outparcel shall be contained entirely within the Outparcel boundaries and the Outparcel shall be subject to a certain separate cross parking easement between the Declarant and the owner of the Outparcel as set forth in that certain Declaration of Restrictive Covenants dated ______, 2018 and recorded on ______in the Cumberland County Registry of Deeds in Book _____, Page____ of the Cumberland County, Maine Official Records. The twenty feet (20') closest to the Outparcel’s front lot line shall not be used for parking.

(k) Landscaping. Except for conditions existing as of the date of this Declaration on Outparcel Lots D, E and F shown on the Site Plan, the twenty feet (20') closest to the Outparcel’s front lot line shall be landscaped and shall remain unpaved except for sidewalks and access drives. All existing landscaping buffer areas located on the Outparcel as shown on the Site Plan shall be continuously maintained by the Outparcel ownerOwner and landscaped with trees, shrubs, grass or other suitable ground cover consistent with the Shopping Center’s landscaping. All parking areas shall have internal landscaping. All internal landscaping shall be protected from vehicular encroachment by concrete curbing. All landscaped areas shall be provided with an underground irrigation system. The Outparcel shall comply with the “minimum landscaped open space” requirements of the South Portland Code of Ordinances.

(l) Curbs and Curb Cuts. Curb cuts from the Outparcel to the Ring Road, Access Road or any other roadway within the Shopping Center shall not be permitted except as shown on the Site Plan. In no event shall there be any curb cuts onto Gorham Road that did not exist as of the date of this Declaration. Any changes to the existing curbs or curb cuts on the Outparcel shall be subject to the written approval of the Declarant, which may be given or withheld in Declarant’s sole and absolute discretion.

2. PERMANENT ACCESS EASEMENT.

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of the Outparcel together with its tenants, occupants, customers, employees, partners, affiliates and others utilizing the Access Road (collectively, the “Outparcel Parties”) by or under Outparcel ownerOwner shall use same in common, with Declarant, its tenants and others to whom rights to use such Access Road have been or are hereafter granted, and in a manner which does not interfere with the use thereof by others. The Easement shall terminate and expire on the earliest to occur of the following events: (i) a separate access route is available for the benefit of the Outparcel, or (ii) at such time as a business open to the public is no longer operated on the Declarant Site; or (iii) such time as the Access Road has not been used by the Outparcel Parties for a period of two (2) years after written notice of non-use from Declarant to the Outparcel ownerOwner; provided, however, if any Outparcel Party should, within two (2) years following receipt of said notice, again use the Access Road and notify Declarant thereof in writing, then the Easement shall not terminate.

(b) The Easement is not intended and shall not be construed as a dedication of the Declarant’s Site or any portion thereof for public use and the parties hereto shall take whatever steps may be necessary to avoid such dedication. Notwithstanding anything in this Agreement to the contrary, Declarant reserves the right, without obtaining the consent of the Outparcel ownerOwner, to do any or all of the following, provided that the right of way is not unreasonably restricted: (i) to relocate, expand, reduce, close, repair, repave, eliminate or otherwise change any of the improvements or facilities at or on the Declarant’s Site; (ii) to grant easements and other interests and rights in and to portions of the Declarant’s Site to third parties; and (iii) to construct or remove signs, landscaping, building and other improvements on any part of the Declarant’s Site.

(c) The Outparcel Parties agrees to comply with reasonable rules and regulations promulgated from time to time regarding the use of the Road, and that it will not do or permit its tenants, employees, licensees, agents, affiliates, customers, invitees or other parties using the Easement to do anything which obstructs or interferes with use of the Access Road or access to and from the Declarant’s Site. Notwithstanding anything to the contrary, the Outparcel Parties shall not allow construction vehicles to use the Access Road during the months of November and December of any year.

(d) Outparcel ownerOwner shall not assign or otherwise transfer any of its rights or obligations under this Agreement except to a transferee which is simultaneously acquiring fee ownership or a leasehold interest in all or substantially all of the Outparcel.

(e) Outparcel ownerOwner shall, at its expense, maintain commercial general liability insurance against claims for personal injury, death and property damage, arising out of the acts or omissions of the Outparcel Parties with respect to the Easement, with a contractual liability endorsement covering Outparcel owner’sOwner’s indemnity obligations under this Agreement, and with

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limits of not less than Three Million Dollars ($3,000,000.00) combined single limit for personal injury, bodily injury or death, or property damage or destruction (including loss of use thereof) per occurrence. Declarant and its lenders and other interested parties which may be designated by Declarant shall be named as additional insureds under such insurance policies. All insurance shall be with insurers rated at least A:10 in the current edition of Best's Insurance Guide. Any policy required herein may be maintained under a blanket policy insuring other parties and locations provided the amount of insurance required hereunder is not thereby diminished. Such insurance shall provide that it will not be canceled without at least ten (10) days' prior written notice to Declarant. Outparcel ownerOwner shall deliver a certificate of insurance to Declarant on or before the date of this Agreement. Outparcel ownerOwner shall furnish renewal certificates at least ten (10) days prior to expiration of the preceding certificate.

(f) The Outparcel Parties utilizing the Access Road shall use same at their own risk. The Outparcel Parties shall indemnify and save Declarant, its partners, affiliates, officers, lenders, employees, and agents from and against any and all claims, actions, damages, liability and expense in connection with the loss of life, personal injury or damage to property or any of them arising out of the acts or omissions of the Outparcel Parties or of third parties with respect to the use of the Access Road. The Outparcel Parties hereby waive as against Declarant, its affiliates partners, officers, lenders, employees, and agents any and all right of recovery in connection with the loss or damage to property of the Outparcel ownerOwner occurring in, on or about the Declarant’s Site, including but not limited to the Access Road, resulting from fire and perils included in broad form extended coverage insurance, or other casualty.

(g) The Outparcel Parties shall not permit any mechanics' or other liens to attach to or become an encumbrance on the Declarant’s Site. If Outparcel Parties shall fail to cause any such lien to be discharged within ten (10) days after the filing thereof, then in addition to any other right or remedy of Declarant, Declarant may discharge same (by payment, bonding or otherwise) and the amounts incurred by Declarant in connection therewith (including, without limitation, reasonable attorneys' fees) shall be due and payable immediately by Outparcel Parties to Declarant.

(h) In the event of condemnation of the Easement by any duly constituted authority for a public or quasi-public use, that portion of the award attributable to the value of any land within the Easement so taken shall be payable to Declarant, provided, however, that the Outparcel ownerOwner may file collateral claims with the condemning authority, over and above the value of the land within the Easement so taken, to the extent of any damage suffered by the Outparcel ownerOwner resulting from the severance of the Easement.

3. SIGNS. All signs on the Outparcel will comply with the following criteria:

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(a) General Requirements and Prohibitions:

(1) There shall be no flashing, blinking, rotating, exposed light, moving, animated or audible signs and no temporary or permanent banners.

(2) There shall be no signs, lettering, symbols or identification of any nature painted on the exterior surface of any building, except rear service door identification signs.

(3) There shall be no pylon signs.

(4) No exposed wiring, conduits, tubing, lamps, ballast boxes or raceways will be permitted.

(5) All cabinets, conductors, transformers, ballasts, attachment devices, and other equipment shall be concealed.

(6) The advertising or informative content of all signs shall be limited to letters designating the business name and/or type of business (which designation will be generally descriptive and shall not include any specification of the merchandise offered for sale therein or the service rendered therein) and shall contain no advertising devices, slogans, symbols or marks.

(7) Freestanding signs are prohibited on the Outparcel.

(b) Building Mounted Signs:

(1) The Improvements or any subsequently constructed building approved by Declarant may contain no more than a single building mounted sign on each of the north, south, east and west façades of the building.

(2) The length of any building mounted sign shall not exceed the lesser of 50% of the length of the wall or facade upon which the sign is mounted or 30 feet; nor shall the height of any such sign exceed 36 inches (48 inches for a building of two stories).

(3) No building mounted sign or any portion thereof may project above the parapet wall or top of the exterior wall or building facade upon which it is mounted.

(4) No rooftop signs of any type will be permitted.

(5) No signs perpendicular to the face of the building or facade will be permitted.

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(6) All building signs shall be approximately flush with the wall of the building to which it is affixed.

(c) Freestanding Signs. No freestanding sign or signs not attached to a building may be installed on any Outparcel other than one permanently affixed freestanding monument sign of equivalent size to the presently existing monument sign located on the Outparcel. No freestanding sign may be located on the Outparcel except in the location of the existing monument sign as indicated on the Site Plan.

4. UTILITIES. All utilities serving the Outparcel shall exclusively serve the Outparcel and the owner shall not be permitted to submeter any utility services from the Declarant’s Site. All utility lines and equipment shall be entirely underground, unless otherwise required by a utility company. No on-site septic system or sanitary sewer treatment facility will be permitted on the Outparcel.

5. LONG CREEK WATERSHED. All Outparcel Parties shall use, operate and maintain the Outparcel in accordance with that certain Agreement Between Participating Landowner and Long Creekthe Watershed Management District dated May 17, 2010 by and between Declarant and the Long Creek Watershed Management District (Agreement, as it may be amended from time to time, and the “Watershed Management Agreement”) and that certain General Permit – Post Construction Discharge of Stormwater in the Long Creek Watershed, MEPDES Permit #MEG190000, dated November 6, 2009 and extended on April 21, 2015 (the “General Permit”) for so long as the General Permit is renewed and the Watershed Management Agreement remains in full force and effect. Declarant will pay the fees assessed pursuant to the Watershed Management Agreement and the Outparcel Owner shall reimburse the Declarant for those fees pursuant to Section 7 below. The Outparcel Owner shall also, in accordance with Section 12 of the Watershed Management Agreement and with Part III(H) of the General Permit, file a Notice of Intent to enter into the General Permit with the Maine Department of Environmental Protection. The Outparcel Parties shall indemnify, defend and hold Declarant harmless from and against any and all claims, losses, damages, causes of action, administrative proceedings, adjudications, fines, assessments, fees, costs and expenses Declarant incurs or suffers as a result of the failure of the Outparcel Parties to operate and maintain the Outparcel in accordance with the General Permit and Watershed Management Agreement. Thereafter, any run-off from the Outparcel shall be contained within the Outparcel and shall be routed to an off-site master detention facility with no excess run-off being discharged across the Declarant’s Site, the Ring Road, the Access Road, adjacent parcels or any adjacent public right of ways.

To the extent that the Outparcel is no longer subject to the General Permit or the Watershed Management Agreement, the Outparcel Owner shall immediately submit to the City of South Portland documentation that the stormwater

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management facilities comply with the requirements of the South Portland Code of Ordinances.

6. REAL PROPERTY TAXES AND ASSESSMENTS.

(a) Payment of Taxes and Assessments. The Outparcel Owner shall pay directly to the applicable taxing authority all taxes assessed against the Outparcel and all buildings, improvements and personal property thereon.

7. COMMON AREA MAINTENANCE AND OUTPARCEL CONTRIBUTION.

(a) The Outparcel Owner shall pay to the Declarant Site Owner its allocable portion of the Declarant Site Owner’s reasonable and customary costs and expenses attributable to maintenance, operation, restoration, repair, rebuilding, lighting, utilities, comprehensive public liability insurance, taxes and assessments, fees pursuant to the Watershed Management Agreement, and any other charge, cost, or expense incurred, paid or required to be paid by Declarant Site Owner with respect to maintain the common areas located on the Declarant Site (the “Common Area Maintenance Charges”) utilized by the Outparcel, which shall include the Access Road and Declarant Site’s parking areas (the “Common Area”), which portion shall bear the same ratio to the total of Declarant Site Owner’s said cost and expense as the total Floor Area in the Outparcel bears to the total Floor Area in the Declarant Site (the “Outparcel Share”). Such payments by Outparcel Owner shall be made in quarterly installments, each payable in advance on or before the first day of each calendar quarter, commencing with the date of acquisition of the Outparcel by Outparcel Owner in an amount estimated by Declarant. Within ninety (90) days after the end of each Accounting Period or partial Accounting Period, there shall be provided to Outparcel Owner (i) a statement of the actual Common Area Maintenance Charges paid or required to be paid by Declarant Site Owner during such period (with such reasonable supporting documentation as may be requested by Outparcel Owner) and (ii) a statement relating to all other costs which Outparcel Owner is to pay pursuant to this Declaration. If and to the extent said statements show that Outparcel Owner is entitled to a credit or is obligated to pay additional sums, there shall be an adjustment between the Declarant Site Owner and Outparcel Owner, with payment to or repayment by Declarant Site Owner, as the case may require, to the end that Declarant Site Owner shall receive the entire amount of Outparcel Owner’s Outparcel Share of such costs and expenses for such period. No capital expenditures incurred by Declarant Site Owner with respect to the Common Area on the Outparcel or the Access Road will be included in the Outparcel Owner’s Outparcel Share of costs and expenses under this paragraph without the approval of the Outparcel Owner, such approval not to be unreasonably withheld, conditioned or delayed; provided, however, that such approval rights of Outparcel Owner shall not affect, and shall be subject to, Declarant Site Owner’s rights to alter, relocate or otherwise change the Access Road, from time to time, pursuant to this Declaration.

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(b) In the event that the Outparcel acquisition date shall occur on a day other than the first or last day of an Accounting Period, respectively, the portion of such costs and expenses payable for such Accounting Period shall be prorated and paid on a daily basis utilizing a 365-day year.

(c) In the event Declarant Site Owner self-insures in whole or in part for any risk with respect to the Common Area on the Access Road, Declarant Site Owner’s cost of insurance for purposes of determining Outparcel Owner’s portion under this Section 7 shall be the sum of (i) premiums actually paid by Declarant Site Owner plus (ii) an amount equal to the premiums Declarant Site Owner would have paid for a policy, with commercially reasonable limits, had Declarant Site Owner not self- insured.

(d) Any payment of Common Area Maintenance Charges or other payments due hereunder not paid when due shall bear interest from the due date at a rate of interest that is 1.5% above the prime rate of interest as announced from time to time by the Wall Street Journal, or if the Wall Street Journal ceases to announce a prime rate, the prime rate as established by a similar publication reasonably selected by Declarant Site Owner (or the highest rate permitted by applicable law, if less).

(e) Except with respect to the Access Road in accordance with this Declaration and Section 7(c) of this Declaration, nothing herein shall require Declarant Site Owner to operate or maintain the Common Area, any common utility facility or any other portion of the Declarant Site or the Shopping Center. Nothing herein shall prohibit Declarant Site Owner from altering, relocating or otherwise changing or consenting to any change to any portion of the Common Area or other facility in existence (if any) from time to time on the Declarant Site or the Shopping Center as Declarant Site Owner shall determine in its sole discretion, except with respect to (i) its obligations set forth in Section 1 above and (ii) the Access Road to the extent set forth in this Declaration.

8. OUTPARCEL MAINTENANCE. The Outparcel shall be maintained at all times in a neat, clean, safe and sightly condition and kept free of any accumulation of trash or debris at the cost of the owner or occupant of the Outparcel, such maintenance to be consistent with the standards of maintenance of the Shopping Center. Construction of improvements shall be pursued diligently to completion. Any damaged or destruction to the Improvements shall be promptly repaired, replaced or removed, in which latter case the Outparcel shall be landscaped in accordance with Section 1(k) above. If any damaged Improvements are not repaired within 120 days after the occurrence of the damage, or if any incomplete repairs to the Improvements are abandoned for a period of 120 days, then Developer may at its option elect to either complete such repairs or raze the improvements and landscape and maintain the Outparcel at the cost of the owner or occupant of the Outparcel.

10. DECLARATION RUNS WITH THE LAND. "Restrictions" shall mean the covenants, restrictions, conditions, provisions and agreements

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contained in this Declaration, as amended from time to time (as hereinafter provided). The Restrictions shall (i) run with the land and bind the Outparcel and its owners, lessees, occupants, successors, assigns and grantees, and (ii) inure to the benefit of Declarant, and each of their successors, assigns and grantees for so long as Declarant or its successors and assigns operate a retail business on the Declarant’s Site. Each owner, tenant and occupant of the Outparcel or portion thereof shall be deemed, by the acceptance of the conveyance, lease or possession thereof, to have accepted same subject to all Restrictions.

11. SEVERABILITY. The Restrictions shall constitute independent covenants. If at any time a court of competent jurisdiction should hold that any one of the Restrictions or any portion thereof, is invalid or for any reason becomes unenforceable, no other Restriction shall be thereby affected or impaired.

12. ENFORCEABILITY. Declarant shall have all rights which are available at law or in equity, including, without limitation, restraining orders, injunctive relief and recovery of damages as well as reasonable attorneys’ fees, court costs and other expenses incurred in connection with enforcing its rights granted hereunder. The failure to enforce any of the Restrictions shall not be deemed a waiver of the right to do so or to enforce thereafter any other Restriction.

13. MISCELLANEOUS. This Declaration shall not be modified, amended, canceled, terminated or waived without the prior written consent of (a) Declarant (and grantee(s) of the Declarant’s Site or any portion thereof in excess of two acres) set forth in an agreement in recordable form, and (b) the City of South Portland, acting by and through its Planning Board. In addition, the current holder of a fee or leasehold interest in the Outparcel must consent in writing to any modification or amendment to this Declaration as it applies to the Outparcel, but not as to any other Outparcel. This Declaration shall be construed in accordance with the laws of the State of Maine.

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IN WITNESS WHEREOF, Declarant does hereby execute this Declaration to be effective as of the date first above written.

MACY’S RETAIL HOLDINGS, INC. a New York corporation

By:______Name:______Title:______

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ACKNOWLEDGMENT

STATE OF ______

COUNTY OF ______

On this day personally appeared before me, a Notary Public within and for the State and County aforesaid, duly qualified, commissioned and acting, ______, to me well known, who stated he/she is the ______of ______, a(n) ______, and was duly authorized in that capacity to execute this instrument in the name and on behalf of the ______, and stated he/she had executed and delivered this instrument for the consideration and purposes and in the capacity set forth therein.

WITNESS my hand and seal this ____ day of ______, 20199__.

______NOTARY PUBLIC

My commission expires:

______

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LIST OF EXHIBITS

Exhibit A - Legal Description of Outparcel Exhibit B - Legal Description of Declarant Site Exhibit C - Site Plan

{P1610368.1} 145/8/2019 5:08:00 PM5/8/2019 3:42:00 PM

707 Sable Oaks Drive, Suite 30 South Portland, Maine 04106 207.772.2515

June 5, 2019

Mr. Steve Puleo Planning and Development Department City of South Portland 496 Ocean Street South Portland, ME 04106

Subject: Minor Subdivision Submission Macy’s Parcel South Portland, Maine

Dear Steve,

This letter and enclosed supporting documents are in response to comments from your office dated May 13, 2019. For ease of review, please find the enclosed documents, as well as updated plans:

Item Location Comment/Response Table Section 1 Updated Declaration of Outparcel Covenants, Conditions Section 2 and Restrictions Updated Reciprocal Easement Agreement Section 3

The project team has benefited from correspondence with you and your office to this point. Please feel free to contact this office with any questions you may have.

Sincerely,

Gorrill Palmer

Doug Reynolds, P.E. Project Manager [email protected]

Copy: Cathi Millwee, Commercial Due Diligence Services

Enclosures

DER/cehU:\3445 - Macy's Subdivision\P Applications\Local\Response to Comments\0_Response to Comments Letter.doc

Section 1 Comment / Response Table Macy's Parcel Response to Comments from Staff received May 13, 2019 GP Project #3445

Reviewer Comment Response Water Resource Manager 1 J Grove: Future development of the subdivided parcels will need to comply with our stormwater regulations. The Applicant understands future development of the parcels is subject to stormwater regulation and permitting and further acknowledges that the City will enforce Conditions of Approval as written for this subdivision relative to Stormwater. Based on our understanding of City Ordinance 27-1536, development of each outparcel (because it requires site plan review) would be required to meet the City's performance standards for Stormwater Management which mirror DEP Ch. 500. While it is not explicitly stated in 27-1536, Section C2(a) does allow for off-site stormwater management if allowed by the Planning Board, as such the Planning Board could consider coverage under the LCWMD General Permit as satisfying the intent of 27-1536. In addition, it should be noted that the 2 undeveloped parcels on this subdivision plan are currently used as parking areas and almost 100% pavement. Any proposed redevelopment will likely yield at least a nominal reduction in impervious area and also swap paved parking areas for new roof area which on its own has some benefit to water quality. At this time it is not known if there is an existing DEP permit for the Macy's parcel, but DEP is researching their files to determine if one exists.

2 F Dillon: I met with the Long Creek Watershed Management District’s Ex. Director Pete Carney and LCWMD attorney Jim Katsiaficas yesterday to strategize about the upcoming General Permit renewal (expires in June 2020). Key considerations will be to determine why water quality and aquatic habitat haven’t improved much despite investing over $10M for the past decade. While chlorides are the most likely culprit, another explanation is that providing treatment for 150 acres of ~600+ acres of impervious area throughout the watershed simply wasn’t enough. This begs the question of which provisions should be included in the next 5 year GP. Since how and where stuff gets built really matters from a water quality perspective, there’s a pretty good chance we’ll suggest developing some kind See response to Item #1 above. of watershed overlay district to tighten requirements for increased SW treatment/retention. (Recall that the GP currently allows for less stringent requirements than Ch. 500). This would have implications for the Macy’s subdivision and all future development in the LC watershed – which still has considerable buildout potential (e.g., Sable Oaks and portions of Scarborough). These discussions are very preliminary but I wanted to let you know what we’re thinking and will definitely loop you all in as the GP renewal process progresses.

Corporation Counsel 6 Changes that need to be made to the proposed (i) Declaration of Reciprocal Easement Agreement, and (ii) Declaration of Outparcel Covenant, Updated Declaration of Reciprocal Easement Agreement and Declaration of Outparcel Covenant, Conditions and Restrictions are Conditions and Restrictions have been provided to the Planning Department in redlined format. The latter document includes changes requested by included in this submission. the Long Creek Watershed Management District's counsel as well as the Corporation Counsel.

7 The Planning Board needs to carefully consider stormwater management implications for the property in the event that some or all of seven lot Within the City Ordinance it appears that the any development or redevelopment of these proposed parcels would be subject to owners decide to seek individual permits for the discharge of post-construction stormwater rather than maintain permit coverage under the Long the City's Site Plan review process, and a project that requires Site Plan review is required to comply with the City's Stormwater Creek General Permit. Is proposed Condition of Approval No. 5 sufficient? What happens when the LCWMD’s life span expires? What control Management Ordinance. Given this, it does appear that were LCWMD GP to expire, the City would still have control over any does the City then have over stormwater management on the properties? development of these parcels and in turn the ability regulate stormwater. 8 Proposed Condition of Approval No. 3 has a typo in it. The typo on the Subdivision Plan has been fixed. 9 Proposed Condition of Approval No. 6 will need to be reworked once Comment (1) above is addressed. Draft Condition of Approval No. 6 has been updated per the Community Planner comment, see below. 10 The configuration of Lots A and B along Maine Mall Road creates oddly shaped lots. The lots meet the City's requirements. Code Enforcement 11 None Engineering Peer Review 12 None Assistant City Manager 13 I have no concerns regarding the subdivision request. Additional development adjacent to the mall will be a good thing. However, when the lots are Comment Acknowledged eventually developed we may need to take a closer look at parking. Fire Department 14 Macy's Retail Holdings, Inc. is requesting a minor subdivision application approval to create a seven-lot subdivision located at 290 Maine Mall Road. Please see Attachment 3 for the reciprocal setback agreement of the submitted Subdivision Plan. Specifically, see paragraph H for The applicant's proposal includes the creation of five separate parcels for the five existing structures onsite including Macy's store as the "parent fire safety. tract." As part, if the creation of the minor subdivision, the applicant is proposing to creation vacant lots for future improvements in which the applicants would obtain a Site Plan from the Planning Board. Each development will be a requirement for relevant site plan criteria. One of the parcels will be a less them 20' side yard setback as found in Section 27-774 of space and bulk previsions.

15 The following code requirements shall be met where applicable: 1. NFPA 101 (2009) Life Safety Code 2. NFPA 1 (2009) Fire Code including Chapter 18 Fire Department Access and Water Supply 3. City of South Portland Ordinance, Chapter 8 Fire Protection and Prevention Comment Acknowledged 4. The BOCA National Fire Prevention Code 1996 5. State of Maine adopted Life Safety Codes

16 Will new lots or future proposed structures have rights and access to the current private hydrants located throughout the Maine Mall? This could be The proposed lots and associated structures would have access to the private hydrants located on the Macy's parcel and has been a concern. added to the Reciprocal Easement Agreement. However, future buildings structures will be required to connect to the existing water/sewer utilities within either Maine Mall Road or Gorham Road.

Planning Director 18 None Community Planner 19 J Barker: I do not see any information related to the minimum landscaped open space. Not sure if all of the proposed lots will meet the 20% requirement or if a written agreement will be required per Sec. 22-774 with all of the lots to collectively meet the requirement.

The Applicant understands future development of the parcels will require Site Plan Approval. At that time, the 20% landscape open space requirement will be discussed.

20 * Please correct the waiver to state: The waiver has been updated; see Subdivision Plan. The waiver of Section 27-1536(h)(1) of the Zoning Ordinance to modify the Basic Stormwater Management Plan requirement is approved in order to allow the developer to participate in the Long Creek Watershed District's General Permit per Section 27-1536(d) of this ordinance. 21 The draft Conditions of Approval on the Subdivision Plan have been updated. * Please correct the conditions of approval by amending the following 1. Prior to the release of the recoding mylar and pre-construction meeting with the City, the applicant shall pay all outstanding review escrow account fees and post the necessary performance guarantee(s) in such amount(s) as established by the City for the installation of the required granite monuments, executed REA for the existing buildings and property owners. 2. Planning Board Regulation #5, standard condition of approval: This approval is dependent upon and limited to the proposals and plans contained in the application and supporting documents submitted and affirmed to by the applicant. No project, plan or development previously approved by the Planning Board may be altered or modified without securing prior approval of the Planning Board in the form of an amended approval; provided, however, that, if at any time it becomes necessary or desirable to make modifications to the project, plan or development, the Planning Director may approve modifications determined by the Planning Director to be de minimis in that they (i) do not amount to a waiver or substantial alteration of any condition or requirement set by the Planning Board; (ii) do not affect any approval standard; (iii) meet all applicable ordinances and laws; (iv) are reviewed and approved by all appropriate City staff and consultants; and (v) do not involve any change to lot lines. De minimis changes include only the modifications listed in Sec 24-27 of the Subdivision Ordinance and Sec. 27-140 of the Zoning Ordinance. 3. (Change to:) Prior to the development and issuance for future building permits, the applicant shall be required the obtain a Site Plan approval for the Planning Board for Lots A and C. 4. (Change to:) No curb cuts of driveway access shall be created for Lots A through G. 5. (Change to:) All Lot shall be required to join the Long Creek Watershed Management District's General Permit and enter into a Drainage Maintenance Agreement. 6. (Change to:) All Lots, including those that do not meet the 20' side yard setback, shall be required to be subject to the Declaration of Outparcel Covenant, Conditions and Restrictions and the Declaration of Reciprocal Easement Agreement, both of which shall be approved as to form by the Corporation Counsel.

Director of Transportation 22 None

When Recorded, Return To: Matthew A. Whitlow, Esq. Macy’s Retail Holdings, Inc. 7 West Seventh Street Cincinnati, OH 45202

DECLARATION

RECIPROCAL EASEMENT AGREEMENT

This Declaration is made as of______, 2019 by Macy’s Retail Holding, Inc., a New York corporation (“Declarant”).

A. Declarant, is the owner of that certain parcel(s) of land that is in the State of Maine, Cumberland County, located at 290 Maine Mall Road in South Portland Maine as described on Exhibit A and as shown on Exhibit B as attached hereto. Declarant’s fee ownership parcel includes Lots A through G as shown on Exhibit B. Declarant desires to subdivide the property into seven (7) separate parcels.

D. Declarant, as owner of Lot G and Declarant as owner of Lot E, subject to subdivision and site plan approval, states that for so long as the existing building on Lot E remains standing in its present form, Declarant shall allow a lesser common side setback, equal to the existing side set back between Lot E and the access way from Gorham Road abutting Lot E, equal to the existing side set back between Lot E and the abutting access way.

E. Declarant, as owner of Lot G and Declarant as owner of Lot F, subject to subdivision and site plan approval, states that for so long as the existing building on Lot F remains standing in its present form, Declarant shall allow a lesser common side setback, equal to the existing side set back between Lot F and the access way from Gorham Road abutting Lot F, equal to the existing side set back between Lot F and the abutting access way.

F. Declarant, as owner of Lot G and Declarant as owner of Lot B, subject to subdivision and site plan approval, states that for so long as the existing building on Lot B remains standing in its present form, Declarant shall allow a lesser common side setback, equal to the existing side set back between Lot B and the access way from Maine Road abutting Lot B.

G. Declarant, as owner of Lot G and Declarant as owner of Lot D, subject to subdivision and site plan approval, states that for so long as the existing building on Lot D remains standing in its present form, Declarant shall allow a lesser common side setback, equal to the existing side set back between Lot D and the access way from Gorham Road abutting Lot D.

H. Declarant, prior to the sale, conveyance or transfer of a fee simple interest of any or all Lots A through F to another party or parties, shall prepare and record in the Cumberland County Registry of Deeds, an enforceable separate Declaration of Outparcel Restrictions Agreement (the “Outparcel Declaration”) between the new owner of any lot and Declarant, and binding upon their respective heirs, successors and assigns, which Outparcel Declaration shall grant reciprocal easements to each lot owner for the mutual construction, maintenance repair and access across each lot for any buildings, parking areas, or other improvements on an abutting lot which the owner of such lot reasonably requires for the use or support of the abutting lot(s) for such purposes, and the Outparcel Declaration shall require the new owner and Declarant to provide for appropriate fire safety construction standards. The grantee of said easement shall have the right of reasonable ingress and egress over and across adjoining land owned by grantor to and from the easement area as so designated under the Outparcel Declaration for the purposes permitted therein.

I. Any lot owner having shared or common parking with any other lot owner and/or any shared access with any other lot owner when such common parking or shared access is used to satisfy the standards of the South Portland Code of Ordinances, subdivision approval or site plan approval, shall maintain its shared or common parking area and shared access area in accordance with any existing or future maintenance agreements between the lot owners or others, including any easement agreement between the lot owners in effect as of the date of this Declaration. Declarant, prior to the sale, conveyance or transfer of a fee simple interest of any or all Lots A through F to another party or parties, shall prepare and record in the Cumberland County Registry of Deeds, an enforceable cross parking easement that will provide sufficient parking to all lots.

J. Declarant, as owner of the existing improved parcels of land identified as Lots A through G, shall, so long as such minimum landscaped open space is required, provide and maintain in Lot G, sufficient minimum landscaped open space so that the minimum landscaped open space for all Lots A through G, when taken together, shall comply with the South Portland Code of Ordinances. The Owner of Lot A, Lot B, Lot C, Lot D, and Lot E shall not reduce the minimum landscaped open space on its lot below the amount of landscaped open space as it currently exists as of the date of this Declaration.

K. This Declaration shall be binding upon Declarant and its respective heirs, successors and assigns.

L. Any modification, amendment, cancellation, termination or waiver of this Declaration that modifies the project, plan, or development on Lots A through G previously approved by the Planning Board shall require the prior written approval of the City of South Portland, acting by and through its Planning Director or Planning Board.

IN TESTIMONY WHEREOF, witness the signature of Declarant on the date first above written.

[Signature follows on subsequent pages]

MACY’S RETAIL HOLDINGS, INC., a New York corporation

By: ______Charles P. DiGiovanna Vice President

STATE OF OHIO ) ) COUNTY OF HAMILTON )

This instrument was acknowledged, subscribed and sworn to before me on the __ day of ______, 2019, by Charles P. DiGiovanna, Vice President of Macy’s Retail Holdings, Inc., a New York corporation, on behalf of said corporation.

______Notary Public My commission expires on______{Seal of Notary}

Doc# 1959245

DECLARATION OF OUTPARCEL COVENANTS, CONDITIONS AND RESTRICTIONS

W I T N E S S E T H:

WHEREAS:

(D) The Outparcel and its Improvements are shown on the site plan ("Site Plan") attached hereto as Exhibit “C” attached hereto.

1895409.1 1

Registry of Deeds in Book 27868, Page 287, and that certain General Permit – Post Construction Discharge of Stormwater in the Long Creek Watershed, MEPDES Permit #MEG190000, dated November 6, 2009, and extended on April 21, 2015 (the “General Permit”), both of which address the discharge of stormwater at the Outparcel and Declarant’s Site.

NOW, THEREFORE, Declarant declares that the Outparcel shall be held, transferred, conveyed and occupied subject to the restrictions and covenants hereinafter set forth:

1. GENERAL RESTRICTIONS.

(c) Permissible Building Areas. All buildings on the Outparcel shall be located within the building footprint of the Improvements as shown on the Site Plan. Except for conditions existing as of the date of this Declaration on Outparcel Lots D, E, and F shown on the Site Plan, all buildings on the Outparcels shall comply with the “maximum building coverage” requirements of the South Portland Code of Ordinances.

(e) Building Architecture. The exterior color, materials and elevations of any building on the Outparcel shall be architecturally harmonious with the Shopping Center. Decorative screening and/or landscaping shall be maintained so as to obscure from public view all trash rooms, trash receptacles, loading or service areas, mechanical or electrical equipment, storage facilities or bins, or other unsightly building appurtenances. Appropriate screening shall be provided to obscure all roof mounted equipment and appurtenances, roof vents and the like from public view.

(h) Quality. The quality of buildings, paving, lighting and other improvements constructed on the Outparcel shall be at least equal to the quality of such improvements on the Declarant’s Site.

3 smelting, agriculture or mining operation, industrial or warehouse purposes, any trailer court, mobile home park, labor camp, junk yard, stock yard or animal raising or boarding (other than pet shops and veterinarian clinics or hospitals, provided such facilities otherwise comply with the provisions hereof), any dumping, disposal, incineration or reduction of garbage or refuse (other than handling or reducing such waste produced on the premises from otherwise authorized uses and only if handled in a reasonably clean and sanitary manner), any commercial laundry or dry cleaning plant (other than shops serving as drop-off and pick-up cleaning establishment with minimal cleaning and/or pressing done on-site), bowling alley, mortuary or similar service, any public or private nuisance, any use not compatible with the operation of a first-class regional enclosed mall shopping center, or any illegal use. No selling activity shall be permitted outside of the buildings on the Outparcel.

(j) Parking. Parking for the Outparcel shall be contained entirely within the Outparcel boundaries and the Outparcel shall be subject to a certain separate cross parking easement between the Declarant and the Outparcel Owner as set forth in that certain Declaration of Restrictive Covenants dated ______, 2018 and recorded on ______in the Cumberland County Registry of Deeds in Book _____, Page____. Except for conditions existing as of the date of this Declaration on Outparcel Lots D, E, and F shown on the Site Plan, the twenty feet (20’) closest to the lot line facing Gorham Road shall not be used for parking.

(k) Landscaping. Except for conditions existing as of the date of this Declaration on Outparcel Lots D, E, and F shown on the Site Plan, the twenty feet (20’) closest to the Outparcel lot line facing Gorham Road shall be landscaped and shall remain unpaved except for sidewalks and access drives. All existing landscaping buffer areas located on the Outparcel as shown on the Site Plan shall be continuously maintained by the Outparcel Owner and landscaped with trees, shrubs, grass or other suitable ground cover consistent with the Shopping Center’s landscaping. All parking areas shall have internal landscaping. All internal landscaping shall be protected from vehicular encroachment by concrete curbing. All landscaped areas shall be provided with an underground irrigation system. Except for conditions existing as of the date of this Declaration on Outparcel Lots D, E, and F shown on the Site Plan, an Outparcel shall comply with the “minimum landscaped open space” requirements of the South Portland Code of Ordinances.

2. PERMANENT ACCESS EASEMENT.

(a) Declarant hereby grants, for the benefit of the Outparcel, a non-exclusive ingress/egress easement (the "Easement") for ingress and egress over and upon the common road (“Access Road”) located on the Declarant Site and as shown on the Site Plan, which provides access between the Outparcel and the adjacent public road subject to the provisions of this Declaration. The Outparcel Owner together with its tenants, occupants, customers, employees, partners, affiliates and others utilizing the Access Road (collectively, the “Outparcel Parties”) by or under Outparcel Owner shall use same in common, with Declarant, its tenants and others to whom rights to use such Access Road have been or are hereafter granted, and in a manner which does not interfere with the use thereof by others. The Easement shall terminate and expire on the earliest to occur of the following events: (i) a separate access route is available for the benefit of the Outparcel, or (ii) at such time as a business open to the public is no longer operated on the Declarant Site; or (iii) such time as the Access Road has not been used by the Outparcel Parties for a period of two (2) years after written notice of non-use from Declarant to the Outparcel Owner; provided, however, if any Outparcel Party should, within two (2) years following receipt of said notice, again use the Access Road and notify Declarant thereof in writing, then the Easement shall not terminate.

(b) The Easement is not intended and shall not be construed as a dedication of the Declarant’s Site or any portion thereof for public use and the parties hereto shall take whatever steps may be necessary to avoid such dedication. Notwithstanding anything in this Agreement to the contrary, Declarant reserves the right, without obtaining the consent of the Outparcel Owner, to do any or all of the following, provided that the right of way is not unreasonably restricted: (i) to relocate, expand, reduce, close, repair, repave, eliminate or otherwise change any of the improvements or facilities at or on the Declarant’s Site; (ii) to grant easements and other interests and rights in and to portions of the Declarant’s Site to third parties; and (iii) to construct or remove signs, landscaping, building and other improvements on any part of the Declarant’s Site.

(d) Outparcel Owner shall not assign or otherwise transfer any of its rights or obligations under this Agreement except to a transferee which is

5 simultaneously acquiring fee ownership or a leasehold interest in all or substantially all of the Outparcel.

(e) Outparcel Owner shall, at its expense, maintain commercial general liability insurance against claims for personal injury, death and property damage, arising out of the acts or omissions of the Outparcel Parties with respect to the Easement, with a contractual liability endorsement covering Outparcel Owner’s indemnity obligations under this Agreement, and with limits of not less than Three Million Dollars ($3,000,000.00) combined single limit for personal injury, bodily injury or death, or property damage or destruction (including loss of use thereof) per occurrence. Declarant and its lenders and other interested parties which may be designated by Declarant shall be named as additional insureds under such insurance policies. All insurance shall be with insurers rated at least A:10 in the current edition of Best's Insurance Guide. Any policy required herein may be maintained under a blanket policy insuring other parties and locations provided the amount of insurance required hereunder is not thereby diminished. Such insurance shall provide that it will not be canceled without at least ten (10) days' prior written notice to Declarant. Outparcel Owner shall deliver a certificate of insurance to Declarant on or before the date of this Agreement. Outparcel Owner shall furnish renewal certificates at least ten (10) days prior to expiration of the preceding certificate.

(f) The Outparcel Parties utilizing the Access Road shall use same at their own risk. The Outparcel Parties shall indemnify and save Declarant, its partners, affiliates, officers, lenders, employees, and agents from and against any and all claims, actions, damages, liability and expense in connection with the loss of life, personal injury or damage to property or any of them arising out of the acts or omissions of the Outparcel Parties or of third parties with respect to the use of the Access Road. The Outparcel Parties hereby waive as against Declarant, its affiliates partners, officers, lenders, employees, and agents any and all right of recovery in connection with the loss or damage to property of the Outparcel Owner occurring in, on or about the Declarant’s Site, including but not limited to the Access Road, resulting from fire and perils included in broad form extended coverage insurance, or other casualty.

(h) In the event of condemnation of the Easement by any duly constituted authority for a public or quasi-public use, that portion of the award

6 attributable to the value of any land within the Easement so taken shall be payable to Declarant, provided, however, that the Outparcel Owner may file collateral claims with the condemning authority, over and above the value of the land within the Easement so taken, to the extent of any damage suffered by the Outparcel Owner resulting from the severance of the Easement.

3. SIGNS. All signs on the Outparcel will comply with the following criteria:

(a) General Requirements and Prohibitions:

(1) There shall be no flashing, blinking, rotating, exposed light, moving, animated or audible signs and no temporary or permanent banners.

(2) There shall be no signs, lettering, symbols or identification of any nature painted on the exterior surface of any building, except rear service door identification signs.

(3) There shall be no pylon signs.

(4) No exposed wiring, conduits, tubing, lamps, ballast boxes or raceways will be permitted.

(5) All cabinets, conductors, transformers, ballasts, attachment devices, and other equipment shall be concealed.

(b) Building Mounted Signs:

(3) No building mounted sign or any portion thereof may project above the parapet wall or top of the exterior wall or building facade upon which it is mounted.

(4) No rooftop signs of any type will be permitted.

(5) No signs perpendicular to the face of the building or facade will be permitted.

(6) All building signs shall be approximately flush with the wall of the building to which it is affixed.

5. LONG CREEK WATERSHED. All Outparcel Parties shall use, operate and maintain the Outparcel in accordance with the Watershed Management Agreement, as it may be amended from time to time, and the “General Permit for so long as the General Permit is renewed, and the Watershed Management Agreement remains in full force and effect. The Outparcel Owner(s) shall pay the fees assessed pursuant to the Watershed Management Agreement and shall, in accordance with Section 12 of the Watershed Management Agreement and with Part III(H) of the General Permit, file a Notice of Intent to enter into the General Permit with the Maine Department of Environmental Protection. The Outparcel Parties shall indemnify, defend and hold Declarant harmless from and against any and all claims, losses, damages, causes of action, administrative proceedings, adjudications, fines, assessments, fees, costs and expenses Declarant incurs or suffers as a result of the failure of the Outparcel Parties to operate and maintain the Outparcel in accordance with the General Permit and Watershed Management Agreement. Thereafter, any run-off from the Outparcel shall be contained within the Outparcel and shall be routed to an off-site master detention facility with no excess run-off being discharged across the Declarant’s Site, the Ring Road, the Access Road, adjacent parcels or any adjacent public right of ways.

To the extent an Outparcel is no longer subject to the General Permit or the Watershed Management Agreement, the Outparcel Owner for such Outparcel shall

8 promptly submit documentation to the City of South Portland evidencing the Outparcel’s stormwater management facilities’ compliance with requirements for stormwater management contained in the South Portland Code of Ordinances.

6. REAL PROPERTY TAXES AND ASSESSMENTS.

7. COMMON AREA MAINTENANCE AND OUTPARCEL CONTRIBUTION.

(a) The Outparcel Owner shall pay to the Declarant Site Owner its allocable portion of the Declarant Site Owner’s reasonable and customary costs and expenses attributable to maintenance, operation, restoration, repair, rebuilding, lighting, utilities, comprehensive public liability insurance, taxes and assessments, and any other charge, cost, or expense incurred, paid or required to be paid by Declarant Site Owner with respect to maintain the common areas located on the Declarant Site (the “Common Area Maintenance Charges”) utilized by the Outparcel, which shall include the Access Road and Declarant Site’s parking areas (the “Common Area”), which portion shall bear the same ratio to the total of Declarant Site Owner’s said cost and expense as the total Floor Area in the Outparcel bears to the total Floor Area in the Declarant Site (the “Outparcel Share”). Such payments by Outparcel Owner shall be made in quarterly installments, each payable in advance on or before the first day of each calendar quarter, commencing with the date of acquisition of the Outparcel by Outparcel Owner in an amount estimated by Declarant. Within ninety (90) days after the end of each Accounting Period or partial Accounting Period, there shall be provided to Outparcel Owner (i) a statement of the actual Common Area Maintenance Charges paid or required to be paid by Declarant Site Owner during such period (with such reasonable supporting documentation as may be requested by Outparcel Owner) and (ii) a statement relating to all other costs which Outparcel Owner is to pay pursuant to this Declaration. If and to the extent said statements show that Outparcel Owner is entitled to a credit or is obligated to pay additional sums, there shall be an adjustment between the Declarant Site Owner and Outparcel Owner, with payment to or repayment by Declarant Site Owner, as the case may require, to the end that Declarant Site Owner shall receive the entire amount of Outparcel Owner’s Outparcel Share of such costs and expenses for such period. No capital expenditures incurred by Declarant Site Owner with respect to the Common Area on the Outparcel or the Access Road will be included in the Outparcel Owner’s Outparcel Share of costs and expenses under this paragraph without the approval of the Outparcel Owner, such approval not to be unreasonably withheld, conditioned or delayed; provided, however, that such approval rights of Outparcel Owner shall not affect, and shall be subject to, Declarant Site Owner’s rights to alter, relocate or otherwise change the Access Road, from time to time, pursuant to this Declaration.

10. DECLARATION RUNS WITH THE LAND. "Restrictions" shall mean the covenants, restrictions, conditions, provisions and agreements 10 contained in this Declaration, as amended from time to time (as hereinafter provided). The Restrictions shall (i) run with the land and bind the Outparcel and its owners, lessees, occupants, successors, assigns and grantees, and (ii) inure to the benefit of Declarant, and each of their successors, assigns and grantees for so long as Declarant or its successors and assigns operate a retail business on the Declarant’s Site. Each owner, tenant and occupant of the Outparcel or portion thereof shall be deemed, by the acceptance of the conveyance, lease or possession thereof, to have accepted same subject to all Restrictions.

13. MISCELLANEOUS. This Declaration shall not be modified, amended, canceled, terminated or waived without the prior written consent of: (a) Declarant (and grantee(s) of the Declarant’s Site or any portion thereof in excess of two acres) set forth in an agreement in recordable form; or (b) the City of South Portland, acting by and through its Planning Director or Planning Board, but only to the extent any such modification, amendment, cancellation, termination or waiver of this Declaration modifies the project, plan, or development on the Outparcel previously approved by the Planning Board. In addition, the current holder of a fee or leasehold interest in the Outparcel must consent in writing to any modification or amendment to this Declaration as it applies to the Outparcel, but not as to any other Outparcel. This Declaration shall be construed in accordance with the laws of the State of Maine.

IN WITNESS WHEREOF, Declarant does hereby execute this Declaration to be effective as of the date first above written.

MACY’S RETAIL HOLDINGS, INC. a New York corporation

By:______Name:______Title:______

ACKNOWLEDGMENT

STATE OF ______

COUNTY OF ______

WITNESS my hand and seal this ____ day of ______, 199__.

______NOTARY PUBLIC

My commission expires:

______

LIST OF EXHIBITS

Exhibit A - Legal Description of Outparcel Exhibit B - Legal Description of Declarant Site Exhibit C - Site Plan

14 June 6, 2019 10:18:00 AM